Applying the constitution of the Republic of Poland in horizontal relations

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Monika Florczak-Wątor

APPLYING THE CONSTITUTION

IN HORIZONTAL RELATIONS

OF THE REPUBLIC OF POLAND

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APPLYING THE CONSTITUTION

IN HORIZONTAL RELATIONS

OF THE REPUBLIC OF POLAND

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0RQLND)ORUF]DN:ĆWRU

APPLYING THE CONSTITUTION

IN HORIZONTAL RELATIONS

OF THE REPUBLIC OF POLAND

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Th e research for this publication was made possible by a grant from the Foundation for Polish Science (Fundacja na rzecz Nauki Polskiej) – POMOST BIS / 2012 – 6 / 2

Translation

Joanna Miler-Cassino, Anna Setkowicz-Ryszka

Reviewer Prof. Piotr Tuleja

Cover design

Andrzej Pilichowski-Ragno

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INTRODUCTION

Th ere is no doubt in contemporary jurisprudence that constitutional norms, including those that enshrine rights and freedoms, not only determine the shape of the relations between an individual and the state (so-called vertical relations), but also infl uence relations between private entities (so-called horizontal relations). Th is is so, because private law may not be formed inde- pendently of the constitution, which has the supreme legal force,¹ while relations between private entities may not be entirely detached from the rights guaranteed by the state to the parties to these relations.² In view of the fore- going, for several decades now, in the legal literature of a number of countries references have been made to the horizontal application of constitutional rights, their horizontal dimension or their horizontal eff ect.

Th e need to take constitutional rights into account when shaping horizontal relations is justifi ed in a number of ways.³ First, it is said that, at present, private entities breach the constitutional rights of an individual more oft en than they are breached by states, particularly those with a democratic system.

Th e assumption that private entities are not bound by constitutional rights would mean that the need to protect these rights in democratic states – given that such rights are respected by public authorities as a matter of policy – might prove superfl uous. Secondly, it is pointed out that, because dignity is the source of constitutional rights, the latter – like dignity – must be protected in a universal and uniform, rather than partial and selective, manner.

Th us, the application of constitutional rights cannot be restrained only to

1 Th e process of impacting the private law by constitutional norms is known as the ‘con- stitutionalization of the private law.’ Cf. M. Safj an, “Efekt horyzontalny praw podstawowych w prawie prywatnym: autonomia woli a zasada równego traktowania,” Kwartalnik Prawa Pry- watnego, 2 (2009), p. 300; O.O. Cherednychenko, “Fundamental rights and private law: A rela- tionship of subordination or complementarity?,” Ultrecht Law Review, 3 (2007), p. 4; H. Nieu- wenhuis, “Fundamental rights talk. An enrichment of legal discourse in private law?” (in:) T. Barkhuysen, P.D. Lindenbergh (eds.), Constitutionalisation of Private Law, Leiden 2006, p. 9;

J. Smits, “Private law and fundamental rights: A sceptical view” (in:) T. Barkhuysen, P.D. Lin- denbergh (eds.), Constitutionalisation of Private Law, Leiden 2006, p. 9–22.

2 As highlighted by O.O. Cherednychenko, as a result of the process of the constitutionali- zation of the private law, fundamental rights can no longer remain in isolation from the private law. Cf. O.O. Cherednychenko, “Fundamental rights and private law…,” p. 1.

3 For their synthetic comparison, cf. A. Barak, “Constitutional human rights and private law,” Review of Constitutional Studies, 2 (1996), p. 228 et. seq.

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the sphere of relations between an individual and the state, while considering that the same rights might be violated in relations between individuals. Th irdly, constitutional rights are at present an indispensable element of a democratic constitution, and the latter is no longer merely a normative act that governs the organization of the state and the principles of functioning of public authorities. Th e constitution enters into new areas of social life, inter- fering with the shape of relations between employers and employees, parents and children, and consumers and entrepreneurs. Accordingly, given that the extent of constitutional regulation is expanding, the scope of constitutional rights should not be limited solely to relations between an individual and the state. Fourthly, the need to incorporate constitutional rights into horizontal relations is justifi ed by the necessity for the state to off er an elementary sense of justice and protection to individuals. A condition under which a constitutional right can be violated with impunity by a private entity undermines the importance of this right and violates the most intuitive belief about the need for its protection.

On the other hand, the horizontal eff ect of constitutional rights has always posed a challenge for the private law, and this has not changed. Th is is because, since this concept restrains the widely understood sphere of an individual’s freedom and requires the latter to take into account the constitutional rights of other entities while taking action. Th is, on the other hand, raises the question of whether the horizontal eff ect of constitutional rights can be reconciled with the basic principles of private law, such as the principle of the autonomy of the will or the principle of the freedom of contract.⁴ As Marek Safj an has noted, ‘the debate centered around the question of the necessary minimum degree of equilibrium in private-legal relations, all while respecting the principles of autonomy and freedom, is one of the most vital questions put forward today within the frame of theoretical refl ections, but also in the case law, as to the fundamental aspect of applying constitutional rules in private law.’⁵

Th us, despite the prevailing consensus that constitutional rights should have an impact upon horizontal relations, two major issues associated with this position remain disputed. First, it remains to be clarifi ed how the horizontal eff ect of constitutional rights should be ensured. Secondly, there is the question of the extent to which they should be taken into account in rela-

4 L. Fastrich, “Human rights and private law” (in:) K.P. Ziegler (ed.), Human Rights and Private Law. Privacy as Autonomy, Oregon 2007, p. 29; A. Guckelberger, “Die Drittwirkung der Grundrechte Juristische Schulung,” 12 (2013), p. 1153; T. Langer, Die Problematik der Geltung der Grundrechte zwischen Privaten, Frankfurt 1998, p. 62–64.

5 M. Safj an, “Efekt horyzontalny praw podstawowych…,” p. 297.

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tions between private entities. As regards the fi rst contentious issue, which Robert Alexy described as ‘the problem of construction,’⁶ it should be noted that diff erent countries have adopted diff ering models regarding the horizontal eff ect of constitutional rights. Th e models most frequently mentioned in the legal literature on the subject include models of the direct horizontal application and the indirect horizontal application of constitutional rights and the protective responsibilities of the state in horizontal relations. As regards the second contentious issue, described by R. Alexy as the ‘problem of collision,’⁷ it should be noted that confl icts between the constitutional rights of parties who are in horizontal relations are currently resolved in a similar way within diff erent jurisdictions. Th e inability of each of the parties to exer- cise confl icting constitutional rights to the full extent of their binding force and application creates a need to balance them in a way that will allow them to be exercised to the greatest extent possible. Th e mechanism for balancing the values that underpin constitutional rights does, in fact, reveal certain dif- ferences within the individual models for the horizontal application of constitutional rights, which will also be described and clarifi ed in this book.

Despite volumes of research on the subject, the problem of the horizontal eff ect of individuals’ rights continues to enjoy steadfast interest in Western literature, as evidenced by the recent collective studies that analyze this issue from a comparative perspective.⁸ Th ese collective works have failed, however, to present the approach of Polish jurisprudence and judicature. It is a fact that, in Poland, the problem of the horizontal application of constitutional rights has so far been only sporadically taken up in the legal literature. It has not been considered to a wider extent in the case law or directly made the subject of constitutional regulation. Th e Constitution of the Republic of Poland is nonetheless applied in the courts’ jurisprudence and infl uences the shape of horizontal relations. Polish courts also apply solutions specifi c to the particular models for the horizontal application of constitutional rights, although they do not explicitly refer to those models.

Th ese circumstances inspired me to initiate research on the problem of the horizontal eff ect of individual rights, the results of which I presented in

6 R. Alexy, Th eorie der Grundrechte, Baden-Baden 1985, p. 480.

7 Ibidem.

8 A. Sajo, R. Uitz (eds.), Th e Constitution in Private Relation: Expanding Constitutionalism, Utrecht 2005; T. Barkhuysen, S.D. Lindenbergh (eds.), Constitutionalisation of Private Law, Leiden 2006; D. Oliver, J. Fedtke (eds.), Human Rights and the Private Sphere. A Comparative Study, New York 2007; M. Faure, A. van der Walt (eds.), Globalization and Private Law. Th e Way Forward, Cheltenham 2010; E. Reid, D. Visser (eds.), Private Law and Human Rights.

Bringing Rights Home in Scotland and South Africa, Edinburgh 2013.

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a monograph that was published in 2014 by Jagiellonian University Press [Wydawnictwo Uniwersytetu Jagiellońskiego].⁹ I carried out this research within the frame of a grant from the Foundation for Polish Science [Fundac- ja na rzecz Nauki Polskiej] for a research project under the title ‘Th e horizontal dimension of the constitutional rights in a comparative perspective.’

Th is book is an abbreviated version of that monograph, and its purpose is to make the results of my research known to English-speaking readers and to disseminate the approach of the Polish judicature and jurisprudence on the horizontal eff ect of individual rights beyond the boundaries of Poland.

I would like to take this opportunity to thank my reviewer Professor Piotr Tuleja for his valuable remarks, which contributed to the fi nal formulation of this monograph.

Th is monograph comprises fi ve chapters, in which I have analyzed the problem of the horizontal eff ect of individual rights within the Polish constitutional reality.

In the fi rst chapter, I ponder the question of why the problem of the horizontal eff ect of individual rights was, in fact, not contemplated at all in Po- land’s jurisprudence until the 1980s, and why it is not expressly laid down in the Polish Constitution, despite a relevant clause being proposed during legislative work on the draft constitution. A determination of the reasons why these proposals were eventually rejected by the Constitutional Commission of the National Assembly allowed me to reconstruct the actual intentions of the constitutional legislator. It turned out that the decision to abandon the said clause was not a purposeful action of the legislator, and therefore, noth- ing stands in the way of assuming that the horizontal application of constitutional rights fi ts within the framework of the Polish Constitution.

In the second chapter, I analyze the way individuals’ rights and freedoms are regulated in the Constitution of the Republic of Poland. Th e purpose of this analysis is to determine whether the Polish Constitution covers rights or freedoms that may have a horizontal dimension, as well as the entities that are the holders of such rights and those that are beholden. However, the invocation of constitutional rights by the holders of those rights in disputes with other private entities fi rst requires a fi nding that constitutional provisions can be directly applied. Accordingly, the focus of my further consider- ation, contained in chapter three, is the principle of direct application of the Polish Constitution, which is provided for in Article 8 para. 2 thereof. I have considered it of crucial importance to determine what constitutes the direct application of the Constitution of the Republic of Poland and what practical

9 M. Florczak-Wątor, Horyzontalny wymiar praw konstytucyjnych, Kraków 2014.

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form it may take when examining the horizontal dimension of constitutional rights.¹⁰ Th e concept of the direct application of the Constitution, in such a broad sense, which has been adopted by the Polish legal jurisprudence and judicature, constitutes the ‘axis’ upon which diff erent models of the horizontal application of constitutional rights can be built.

In the fourth chapter, I deliberate upon the problem of the scope of the horizontal application of constitutional rights and the related issue of the collision of constitutional rights. It is a specifi c feature of horizontal relations that both of the parties are benefi ciaries of constitutional rights and freedoms, and both rely on those rights and freedoms, demanding their protection. Last, but not least, in chapter fi ve, I distinguish three basic models for the horizontal operation of individual rights in an attempt to determine their applicability within the Polish constitutional reality. Th e scope of my research covered the model for the direct horizontal application of individual’s rights, the model for the indirect horizontal application of these rights and the model for the protective responsibilities of the state. In diff erent countries these models are oft en applied in a parallel and complementary manner. Th ey are not competitive towards one another; there is no need to select one optimum model that would preclude the application of other models. In my delibera- tions I have omitted the state action model recognizing that given the form in which it is employed in the United States, it has little applicability under the Polish Constitution.

10 Likewise, cf. A. Drozd, “Drittwirkung der Grundrechte im polnischen Recht mit be- sonderer Berücksichtigung des Arbeitsrechts”, Deutsche-Polnische Juristen-Zeitschrift , 2008, p. 28; B. Skwara, “Horyzontalne obowiązywanie praw człowieka. Rozważania teoretyczno- -prawne” (in:) J. Jaskiernia (ed.), Efektywność europejskiego systemu ochrony praw człowieka.

Ewolucja i uwarunkowania systemu ochrony praw człowieka, Toruń 2012, p. 385; S. Jarosz- Żukowska, “Problem horyzontalnego stosowania norm konstytucyjnych dotyczących wolnoś- ci i praw jednostki w świetle Konstytucji RP” (in:) M. Jabłoński (ed.), Wolności i prawa jednost- ki w Konstytucji RP, Warszawa 2010, p. 189.

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Chapter 1 THE PROBLEM OF THE HORIZONTAL EFFECT OF CONSTITUTIONAL RIGHTS DURING THE DRAFTING

OF THE POLISH CONSTITUTION 1.1. The Period Preceding the Drafting of the Constitution

Although aft er World War II, the issue of the horizontal eff ect of constitutional rights was widely discussed across many European countries, particularly in Germany and Switzerland, it was basically not taken up at all in the Polish legal literature. Th e reason for the lack of interest in this subject in Poland was above all the politicization of the then binding Constitution of 1952 as well as disrespect for the rights of the individual that was laid down in that Constitution and the marginalization of those rights by communist authorities. Th at Constitution was denied a normative quality through the recognition that it was not apt for direct application. Its norms were believed to be too general, and to always require concretization by statutes. Th e Con- stitution itself did not confer any specifi c protective tools to individuals in the event of the violation of the rights or freedoms enshrined in it. Th e approach of the jurisprudence during that period was shaped by a resolution of the Supreme Court of 12 February 1955, Ref. No. I CO 4/55, which stated: ‘Con- stitutional norms construe basic legal principles, constituting the axis of the suprastructure of laws, which as a rule is unsuitable for direct practical application in everyday life of the society, unless expounded in statutes and other normative acts.’ Accordingly, since the applicability of the Constitution was challenged even in vertical relations (between the individual and the state), it was completely pointless to consider its application in horizontal relations (between individuals).

Th e absence of discussion regarding the horizontal eff ect of constitutional rights was also a consequence of the perception of the Constitution of 1952 by the then contemporary jurisprudence as a normative act belonging to

‘state law’ and regulating relations between the individual and the state. It should be noted that, in post-war socialist Poland, the distinction between the sphere of public law and private law was not as clearly drawn as in other

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countries in Europe at that time. Moreover, the public law dominated and marginalized the private law. Th ere were various reasons for this. First, Polish law, during that period, remained under the strong infl uence of Soviet law, which rejected the division into public and private law, recognizing that such a division fi nds its justifi cation only in relation to the law of the so-called pre-socialist formations. Secondly, denying the need for private ownership and emphasizing the importance of collective ownership also brought about the expansion of public law into spheres that were regarded as falling under private law in Western European countries. As the Polish legal scholar Andrzej Stelmachowski wrote: ‘Lenin’s famous statement that “We do not recognize anything «private», and regard everything in the economic sphere as falling under public and not private law” laconically expressed the very essence of socialist type of law (...) Th e doctrinal division into public law and private law lost its raison d’être in socialist state.’ Th irdly, during the era of the Polish Peoples’ Republic (PRL), the private interests of individuals were subordinate to, and even identifi ed with, the interests of the entire society.

Th is ruled out a division of law into public and private based on the criterion of interest recognized by Ulpian, according to which the law that protects the interests of the state is the public law and the law that protects the interests of individuals is the private law. In a socialist state, the indistinguishability between private and public law based on this criterion was a consequence that was typical for socialism, i.e. the harmonious compatibility between social and personal interests. As a result, the perception of certain behaviors as private, autonomous, and free from state regulation was not as strongly rooted in Polish society as it was in the West.

Th e need for a new perspective on the problem of the relations between private entities was, so to speak, triggered in Poland by the socio-economic changes accompanying the political transformation that took place in the 1990s. On the one hand, the state began to transfer tasks that it had pre- viously implemented on an exclusive basis to private entities in fi elds such as education, health care, public transportation and building public utility facilities. Th us, private entities began to implement tasks of a public nature, which was a completely new phenomenon, given the earlier omnipotence of the state that was quite typical of the socialist system. On the other hand, at that time, stronger and stronger private entities that were endowed with a state-like capacity to subjugate individuals began to spring up and operate in Poland, namely all kinds of international corporations, supranational non-governmental organizations and global regulators. Th eir classifi cation as private entities became increasingly debatable over time due to their grow- ing ability to act in a wide public sphere. In the era of privatization, when

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private entities oft en fulfi ll public functions, availing themselves of the state powers that authorize their actions, it is not easy to determine exactly where the public sphere ends and the private sphere begins. Even institutions that are traditionally perceived as being the backbone of the private sphere, such as private ownership, may take on a public nature. Th e more a private own- er transfers, for profi t, his own property for public use, the more he must surrender to the limitations of his own rights due to the need to protect the rights of the people who use his property. Th is is an example of circumstances in which the public and the private sector overlap, because private property that is made available to the public loses its exclusively private nature. Th is process of blurring the boundaries between public and private law, i.e. the mutual interaction between the two spheres of law and their intermingling, began to be called the ‘publicization of private law’ in Polish legal literature.

As a result of all of the phenomena described above, the fi rst studies on the problem of the horizontal eff ect of constitutional rights, which reported the approaches adopted in foreign legal literature and jurisprudence did not ap- pear in Polish legal writings until the 1980s. It was under the infl uence of these publications that this issue became the subject of debate during the draft ing of the Constitution that is currently in force, which was enacted in 1997.

1.2. Solutions Adopted in Drafts of the Constitution

Not all of the draft versions of the Constitution incorporated the aspect of the horizontal eff ect of constitutional rights; nonetheless, it was present in most of them. Th e fi rst draft , in which the clause on the horizontal eff ectiveness of constitutional rights appeared, was the text draft ed in 1990 by a team of experts headed by S. Zawadzki.¹¹ According to the wording of Article 36 thereof, ‘Freedoms and rights enshrined in the Constitution shall apply appropriately to relations between natural and legal persons, accordingly to their nature.’ A year later, the Constitutional Commission of the Sejm [the lower house of the Polish Parliament] of the tenth term adopted a draft version that contained a similar solution. Article 17 of that version read: ‘Rights and freedoms enshrined in the Constitution shall apply to relations between private

11 Th e draft was published in a separate publication by Warsaw University and in the Bulletin of the Constitutional Commission of the National Assembly (Biuletyn Komisji Kon- stytucyjnej Zgromadzenia Narodowego). Cf. Konstytucja Rzeczypospolitej Polskiej. Projekt, Warsaw, October 1990 and Bulletin of the Constitutional Committee no. XII of 1990, p. 9–23.

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entities, accordingly to their nature.’¹² Th e fi rst of those draft s never became the subject of a legislative initiative, and parliamentary work on the second draft was discontinued aft er it was agreed that the new Constitution would be passed by the fi rst parliament to be elected in a fully democratic way.

Aft er the elections of 1993, work on the Constitution was resumed. Out of the seven draft versions of the Constitution then submitted, one draft version explicitly envisaged the horizontal eff ect of constitutional rights, the second openly precluded such horizontal eff ect, while yet another contained a legal regulation that could have been interpreted in various ways with respect to this issue. Th e remaining draft versions did not address the issue at all.

Th e draft Constitution that expressly endowed constitutional rights with a horizontal dimension was a draft by a group of Members of Parliament and Senators, including members of the parliamentary club of the Polish Peo- ple’s Party [Polskie Stronnictwo Ludowe], the MPs’ group of the Labor Union [Unia Pracy], the German Minority [Mniejszość Niemiecka], the Party of Pensioners and Retirees “Th e Hope” [Partia Rencistów i Emerytów “Nadzie- ja”] and non-attached MPs.¹³ Article 17 of this draft read as follows: ‘Rights and freedoms enshrined in the Constitution shall apply to relations between private entities, accordingly to their nature.’ It was thus a proposal that was identical to that brought forward in the tenth term of the Sejm by the then acting Constitutional Commission.

Th e draft Constitution containing an approach to the horizontal eff ect of constitutional rights that was not entirely clear was the one prepared by the Constitutional Commission of the fi rst term of the Senate. Article 16 of this draft contained the following wording: ‘Th e Republic of Poland shall ensure judicial legal protection to any person whose rights and freedoms enshrined in the Constitution have been violated, also when such a violation was com- mitted by persons acting in an offi cial capacity.’¹⁴ Th e fi nal part of this clause can be understood in two ways. First, it may be deemed that constitutional rights and freedoms can be violated also by persons not acting in an offi cial capacity (and therefore by private entities), which would mean that this draft accepted the principle of horizontal eff ect of constitutional rights. Secondly, the cited fragment of Article 16 could be interpreted as meaning that constitutional rights and freedoms can be violated by public authorities as well as ‘by persons acting in an offi cial capacity.’ Given such an interpretation, it should be concluded that this clause precluded the horizontal eff ect of consti-

12 Projekty konstytucyjne 1989–1991, edited for print by M. Kallas, Warsaw 1992, p. 22.

13 Projekty konstytucji 1993–1997, edited for print by R. Chruściak, Warsaw 1997, p. 190.

14 Ibidem, p. 142.

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tutional rights. In both cases, the word ‘also’ placed before the phrase ‘persons acting in an offi cial capacity’ suggested that there was a certain obvious group of violators of constitutional rights and freedoms, which there was no need to mention. It remains an open question, however, whether, in light of the said Article 16, this obvious group of violators was intended to cover state authorities or individuals.

Th e draft Constitution submitted in 1994 by Lech Wałęsa, who was then President of the Republic of Poland, containing the Charter of Rights and Freedoms as its integral part, directly excluded the horizontal eff ect of constitutional rights. Its application was limited to vertical relations only. Art. 1 para. 1 of the Charter pronounced: ‘Th is Charter defi nes relations between persons who fall under the law of the Republic of Poland and public authorities.’ Th e statement of reasons for this draft read: ‘Th e Charter regulates the relations between an individual and the state rather than relations between people or between state authorities. It is a collection of rights, the respect for which a citizen may enforce from the state through a court of law.’¹⁵

1.3. Discussion on the Inclusion of the Horizontal Effect Clause

Eventually, the fate of the clause on the horizontal eff ect of constitutional rights was determined at the meeting of the Citizens’ Rights and Duties Sub- commission of the Constitutional Commission of the National Assembly held on November 30, 1994. On that day, two versions of a provision that contained such a clause were considered. Th e fi rst version was: ‘Freedoms and rights enshrined in the Constitution shall apply to relations between private entities, accordingly to their nature.’ Th e second version read as follows:

‘Freedoms and rights enshrined in the Constitution shall apply appropriately to relations between citizens and legal persons, accordingly to their nature.’

Th us, the diff erences between these two variants of the provision were editorial, rather than substantive, in nature. Th e mere fact, however, that two potential variants of this provision were considered leads to the conclusion that its inclusion into the text of the new Constitution seemed preordained, and only its wording was contested.

During the meeting of the said Subcommission, however, a discussion evolved that ultimately induced the Subcommission members to remove the clause on the horizontal eff ect of individual’s rights from the draft Constitu-

15 Ibidem, p. 89.

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tion. When proceeding to examine this item of the parliamentary agenda, the chairman of the Subcommission, MP J. Gwiżdż, announced that in his opinion ‘it is a redundant provision.’¹⁶ In turn, the President’s representa- tive, A. Rzepliński, added: ‘Th is provision refl ects a certain view prevailing amongst researchers. Yet it does not enjoy a great support in the human rights doctrine.’ Considering that ‘this provision “distorts” the responsibility of public authorities related to civil rights and freedoms,’ A. Rzepliński proposed that it not be included. Because none of the MPs or Senators were against striking-off that provision, it was removed from the draft Constitution during that particular meeting of the Subcommission.¹⁷

In the end, the uniform text of the Constitution of the Republic of Po- land, which the Constitutional Commission completed on June 19, 1996, did not contain a provision on the horizontal or vertical eff ect of constitutional rights. Th e removal of the said clause from the draft of the Constitution of the Republic of Poland was viewed in a diff erent way in the legal literature;

diametrically diff erent conclusions have also been drawn from this fact.¹⁸

1.4. Conclusions Impacting the Interpretation of Constitutional Provisions

It does not follow from the course of the discussion during the meeting of the Subcommission of the Constitutional Commission of the National As- sembly, during which the proposed clause on the horizontal eff ect of constitutional rights was removed from the Constitution, that the reason for this decision was a belief of the parliamentarians or experts of the Constitutional Commission of the National Assembly that constitutional rights apply only to vertical relations. Th e opinion regarding the redundancy of this clause that was expressed by the Chairman of the Subcommission can be interpreted in various ways. Redundancy may, in fact, mean that either there is no need to

‘write down’ in the Polish Constitution something as obvious, or that there is no need to include something in it that does not exist or does not matter in

16 Bulletin of the Constitutional Commission of the National Assembly (Biuletyn Komi- sji Konstytucyjnej Zgromadzenia Narodowego), X (1995), p. 130.

17 Ibidem.

18 Cf. L. Wiśniewski, “Tor przeszkód projektu nowej konstytucji,” Rzeczpospolita, June 20, 1996; L. Wiśniewski, “Dla kogo konstytucja,” Rzeczpospolita, October 9, 1996; W. Sadurski,

“Konstytucja Muminków,” Rzeczpospolita, June 10, 1996.

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practice. Also, the view of A. Rzepliński regarding the risk of ‘distorting’ the responsibility of public authorities for violations of constitutional rights and freedoms did not deny their horizontal eff ect. Hence, the non-inclusion of that clause in the Constitution of the Republic of Poland does not rule out the adoption of the thesis that constitutional rights have a horizontal dimension.

As has already been emphasized by M. Piechowiak, aft er the Constitution en- tered into force, the rights of the people are ‘by their nature open to diff erent entities, depending on the nature of the given right and the circumstances, while the constitution, also by its nature, does not govern only an individual’s relation with a state, but provides the grounds to organize the entire social life. With a right formulation of fundamental rights and freedoms, there is therefore no need for introducing (...) a formula’ directly relating to the horizontal application of human rights.¹⁹

19 M. Piechowiak, “Pojęcie praw człowieka” (in:) L. Wiśniewski (ed.), Podstawowe pra- wa jednostki i ich sądowa ochrona, Warszawa 1997, p. 31.

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Chapter 2 HOLDERS OF CONSTITUTIONAL RIGHTS AND FREEDOMS

2.1. Regulation of Rights and Freedoms in the Polish Constitution

Th e Constitution of the Republic of Poland enshrines a sizeable list of the rights and freedoms of an individual, which is itemized in Chapter II, imme- diately following the general principles. Th e emphasis on these questions in the Constitution’s systematics proves the great importance attached to them by the constitutional legislator. Chapter II of the Constitution starts with the three guiding principles, i.e. the principles of dignity, equality and freedom.

An inherent and inalienable human dignity is identifi ed as the source of the individual’s rights and freedoms. It does not, however, make these freedoms absolute, because almost all constitutional rights and freedoms may be re- stricted by the public authorities, subject to the conditions identifi ed in Art.

31 para. 3 of the Constitution. Th e restrictions can be introduced only in statutes and only to the extent to which they are necessary in a democratic state for the protection of security and the public order, the natural environment, health, public morals, and the rights and freedoms of other persons. How- ever, these restrictions cannot violate the essence of such rights and freedoms.

Th e rights and freedoms of an individual are worded in the Constitution in various ways. Some provisions state that a given person ‘shall have the right,’ and in others legal protection is accorded to specifi c interests of an individual, such as his work or property. Other provisions protect a certain freedom without naming the person who enjoys it, using the following ex- pressions ‘freedom (…) shall be ensured’ (e.g. Art. 49, Art. 50, Art. 61 para.

1, Art. 62 para. 1) or ‘the Republic of Poland shall ensure protection’ (Art. 38, Art. 72 para. 1). Yet another group of constitutional provisions place emphasis on the universality of certain freedoms, with the expression ‘freedom shall be ensured to everyone’ (e.g. Art. 52 para. 1, Art. 53 para. 1, Art. 54 para. 1, Art. 57). However, none of these kinds of provisions have given rise to any major problems in decoding constitutional rights and freedoms.

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But such problems have arisen with respect to some of the provisions in the subchapter on ‘Economic, Social and Cultural Freedoms and Rights,’

which generally do not expressly mention any rights or freedoms of the individual, but rather, address the state’s obligations. Th ese provisions con- tain the so-called program norms (also referred to as principles of the state’s policy), which are addressed to public authorities and direct them to take measures intended to achieve specifi ed socio-economic goals.²⁰ What indi- rectly follows from these norms is a ban on taking measures that prevent the achievement of those goals. Some program norms merely set the desir- able socio-economic goals, but others also identify the means that must be used to achieve them. An example of the latter kind can be found in Art. 65 para. 5 of the Polish Constitution, according to which the ‘Public authorities shall pursue policies aiming at full, productive employment by implementing programs to combat unemployment, including the organization of and support for occupational advice and training, as well as public works and economic intervention.’ Polish legal scholars disagree on whether program norms are a source of constitutional rights and freedoms that can be enforced by individuals. On the one hand, no subjective rights are expressly formulated in these provisions and sometimes it is even diffi cult to establish what specifi cally an individual could demand from the public authorities on the basis of such a provision. Th is would lead to the conclusion that program norms are not a source of subjective rights. On the other hand, the provisions in question are to be found in Chapter II, entitled ‘Th e Freedoms, Rights and Obligations of Persons and Citizens,’ while Art. 81 of the Polish Constitution expressly states that the ‘rights’ specifi ed in those very provisions ‘may be asserted subject to limitations specifi ed by statute.’ Th ese are at least two important arguments to support the thesis that program norms can be the source of subjective rights.

Th e case law of the Constitutional Tribunal also does not provide an une- quivocal answer to the question of whether a specifi c subjective right can be derived from a program norm. It follows from some Constitutional Tribunal judgments that a program norm gives no grounds for decoding specifi c le-

20 On the subject of program norms, cf. T. Gizbert-Studnicki, A. Grabowski, “Normy pro- gramowe w konstytucji” (in:) Charakter i struktura norm Konstytucji, Warszawa 1997; P. Sar- necki, “Normy programowe w Konstytucji i odpowiadające im wolności obywatelskie” (in:) L. Garlicki, A. Szmyt (eds.), Sześć lat Konstytucji Rzeczypospolitej Polskiej. Doświadczenia i in- spiracje, Warszawa 2003, p. 252–262; M. Florczak-Wątor, “Możliwość kontrolowania przez TK swobody ustawodawcy w zakresie realizacji norm programowych,” Przegląd Sejmowy, 4 (2009), p. 111–12

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gal rights of an individual,²¹ while according to other Constitutional Tribu- nal judgments, in certain situations, program norms contained in the Consti- tution can also give rise to rights and freedoms of individuals.²² In addition, in some Constitutional Tribunal case law, one can fi nd a view according to which program norms are the ‘germ’ of rights and freedoms, setting their minimum content and the corresponding minimum obligations of the state.²³ I believe that we cannot completely rule out the possibility of inferring subjective rights from provisions containing program norms. If only the content of such provisions enables the reconstruction of all of the elements of the subjective right, their program character should not be an obstacle.

Constitutional rights and freedoms can stem not only from the provisions included in Chapter II of the Polish Constitution, but also from provisions in other parts of the Constitution. An example is the freedom of economic activity, regulated in Art. 20 and Art. 22 of the Polish Consti- tution, in Chapter I entitled ‘Th e Republic,’ and the right to stand as a can- didate in parliamentary elections (Art. 99 of the Polish Constitution) and in presidential elections (Art. 127 para. 3), regulated in the chapters concerning the organization and functioning of such authorities. Moreover, the Tribunal assumes that even provisions that do not directly express a certain right or freedom can be their source. An example is Art. 2 of the Polish Constitution, pursuant to which the Republic of Poland is a democratic state ruled by law and implementing the principles of social justice. Th e Constitutional Tribunal assumes that this provision could be an independ- ent basis of review in proceedings triggered by a constitutional complaint, if from this provision, the applicant derives rights or freedoms that are not enshrined in other constitutional provisions.²⁴ A basis of review in proceedings concerning constitutional complaints can only be a constitutional provision that establishes specifi c rights or freedoms.

21 Decisions of the Constitutional Tribunal: of January 20, 2009, Ref. No. Ts 240/07. Of February 6, 2002, Ref. No. Ts 104/01; of September 21, 1999, Ref. No. Ts 57/99; of June 26, 2002, Ref. No. SK 1/02; of December 22, 2008, Ref. No. Ts 216/08; of June 29, 2011, Ref. No.

Ts 214/10; of January 17, 2012, Ref. No. Ts 294/11; of October 24, 2006, Ref. No. Ts 158/06; of January 5, 2010, Ref. No. Ts 63/09; of April 29, 2008, Ref. No. Ts 203/07.

22 Judgments of the Constitutional Tribunal: of May 11, 2011, Ref. No. SK 11/09; of No- vember 13, 2007, Ref. No. P 42/06; decision of July 15, 2009, Ref. No. Ts 214/07.

23 Cf. e.g. judgment of the Constitutional Tribunal of March 11, 2008, Ref. No. SK 58/06 and decision of September 10, 2009, Ref. No. Ts 342/08.

24 Cf. e.g. decisions of the Constitutional Tribunal: of January 24, 2001, Ref. No. Ts 129/00;

of March 6, 2001, Ref. No. Ts 199/00; of June 21, 2001, Ref. No. Ts 187/00; of August 10, 2001, Ref. No. Ts 56/01; of June 26, 2002, Ref. No. SK 1/02 and judgments of the Constitutional Tri- bunal: of December 12, 2001, Ref. No. SK 26/01; of July 10, 2007, Ref. No. SK 50/06; of October 28, 2010, Ref. No. SK 19/09.

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2.2. The Principle of Universal Enjoyment of Constitutional Rights and Freedoms

Pursuant to Art. 37 of the Constitution, ‘Anyone, being under the authority of the Polish State, shall enjoy the freedoms and rights ensured by the Constitu- tion;’ however exceptions to this principle with respect to foreigners may be specifi ed by statute. Th e aforementioned provision articulates the principle of the universal enjoyment of constitutional rights and freedoms. As for its scope, this principle applies to ‘freedoms and rights ensured by the Consti- tution,’ and thus, not solely to those regulated in Chapter II, which includes the aforementioned Art. 37. In terms of its benefi ciaries, the principle of the universal enjoyment of constitutional rights and freedoms covers anyone who is ‘under the authority of the Republic of Poland,’ but foreigners may be subjected to limitations in its application. Th us, the universal enjoyment of constitutional rights and freedoms is subject to two reservations. Th e fi rst is the requirement that one must be under the authority of the Polish state, and the other concerns foreigners.

Most constitutional rights and freedoms, in accordance with the aforementioned principle of universality, have a general character, which means that anyone within the sphere of infl uence of Polish law may enjoy them.

Th us, fi rst of all, any human being is a holder of constitutional rights and freedoms, which follows both from the title of Chapter II and its individual provisions. Th e constitutional legislator uses several notions to defi ne that holder: ‘person’ (‘human being’), ‘anyone,’ ‘no one,’ ‘everyone’ and ‘all persons.’ Th e fi rst notion is used in provisions that concern the dignity of the person (Art. 30 and Preamble), the freedom of the person (Art. 31) and the legal protection of the life of a human being (Art. 38). In other constitutional provisions, the remaining phrases are used to express the universality of rights and freedoms. Th ey seem to be more capacious terms than ‘person/

human being,’ because they can refer not only to natural persons, but also legal persons and other organizational units. Nonetheless, this does not mean that all of the constitutional rights and freedoms that are enjoyed by ‘anyone,’

‘no one’ or ‘everyone’ concern the same groups of addressees. Th e group of persons to which they apply is additionally determined by the character of the given right or freedom. Some constitutional rights and freedoms by defi nition apply to natural persons only, and thus, terms such as ‘anyone,’ ‘no one’ or ‘everyone’ will be used according to a narrow meaning to defi ne this group of entities. On the other hand, some constitutional rights and freedoms may also be enjoyed by legal persons or other organizational units. In this

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case, the aforementioned terms ‘anyone,’ ‘no one’ or ‘everyone’ will be used in a broad sense, covering all entities capable of enjoying a given right or freedom in their interest.²⁵ First, these will be include legal persons, which, in light of the civil law, have legal capacity, that is, they can have rights and obligations. As the Constitutional Tribunal stated in its judgment of May 7, 2001, Ref. No. K 19/00, ‘A legal person may be the holder of constitutional public subjective rights, because this enables a fuller implementation of these rights by individual natural persons. Th is is the ratio legis of including legal persons in the group of persons enjoying e.g. freedom of association, freedom of economic activity or right to protection of ownership.’

Legal personality in the civil-law sense is not, however, a condition for having freedoms and rights in the sphere of constitutional law.²⁶ Th erefore, these rights and freedoms may also be enjoyed by organizational units that are not legal persons, or even by groups of natural persons that are not orga- nized in a way that allows their recognition as units of this kind. I will return to the problem of the latter entities further in this book.

2.3. Citizen as a Holder of Constitutional Rights and Freedoms

Th e aforementioned principle of universality expressed in Art. 37 para. 1 of the Constitution does not apply when the constitutional provision narrows down the group of entities enjoying a given right or freedom. Th is concerns, in the fi rst place, the rights and freedoms that the Constitution confers on citizens. In this context, we should observe that citizens, in addition to persons, are the second group of entities mentioned in the title of Chapter II of the Constitution, which reads: ‘Th e Freedoms, Rights and Obligations of Per- sons and Citizens.’ Th is title does not refer to separate terms identifying two completely diff erent groups of holders of constitutional rights and freedoms.

25 Th is distinction is accepted by legal scholars. Cf. J. Trzciński, “Zakres podmiotowy i pod- stawa skargi konstytucyjnej” (in:) J. Trzciński (ed.), Skarga konstytucyjna, Warszawa 2000, p. 49–51; B. Szmulik, Skarga konstytucyjna na tle porównawczym, Warszawa 2006, p. 113–117;

L. Jamróz, Skarga konstytucyjna. Wstępne rozpoznanie, Białystok 2011, p. 71. It also appears in the Constitutional Tribunal case law. Cf. e.g. the judgment of June 8, 1999, Ref. No. SK 12/98, in which the Tribunal held: ‘It seems (…) obvious that certain rights, such as the right of ownership, or freedoms, such as freedom to engage in business activity – by the nature of the economic system – apply not only to natural persons, but also to economic entities.’

26 Decisions of the Constitutional Tribunal: of February 23, 2005, Ref. No. Ts 35/04;

of April 6, 2005, Ref. No. Ts 9/05.

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Th e terms ‘persons’ and ‘citizens’ denote a broader or narrower group of entities enjoying constitutional rights or duties. Th e meanings of these terms overlap only partially, because a citizen is always a person, while not every person is a citizen, because he may be a stateless person having no citizenship.

In addition to the term ‘citizen,’ some constitutional provisions also refer to ‘Polish citizen.’ In pondering the relationship between these terms, one should reach the conclusion that ‘citizen’ is not a broader term that also covers citizens of other states, along with Polish citizens. Each time the notion of

‘citizen’ is used, the constitutional legislator means Polish citizens. So, regardless of whether the holder of the constitutional right was referred to as a citizen or a Polish citizen, exactly the same group of persons is meant. Yet legal scholars have pointed out that the rights and freedoms reserved in the Polish Constitution for ‘Polish citizens’ are closely tied with the essence of citizenship understood as a special legal bond between an individual and the state.

Th e rights and freedoms granted to ‘citizens,’ without the stipulation that they concern Polish citizens, do not display such a close bond with the state. On this premise, one could formulate a thesis that these two groups constituting rights and freedoms diff er in terms of permitting the group of their holders to be extended in sub-constitutional acts. Rights reserved in the Constitution for Polish citizens – unlike those reserved for citizens – cannot be granted in statutory law to foreigners and stateless persons.²⁷ As regards rights reserved for citizens, such extra-constitutional extensions of the groups constituting the holders of a right or freedom produces the result that a given right (freedom) is a constitutional right (freedom) for Polish citizens and statutory right (freedom) for foreigners and stateless persons. Th is in turn means that when granting a given right to foreigners, the legislator can freely shape its sub- stance and limit the said right without taking into account the conditions listed in Art. 31 para. 3 of the Constitution, and foreigners cannot claim the protection of these rights by means of a constitutional complaint. Th is seems to be the only rational reason for the fact that the constitutional legislator uses the notions of both ‘citizen’ and ‘Polish citizen.’

27 Likewise cf. M. Jabłoński, “Zakres podmiotowy realizacji praw obywatelskich w Konstytu- cji RP z 2.4.1997 r.” (in:) B. Banaszak, A. Preisner (eds.), Prawa i wolności obywatelskie w Kon- stytucji RP, Warszawa 2002, p. 150–151. Diff erently K. Wojtyczek, “Konstytucyjne regulacje systemu wyborczego w III Rzeczypospolitej” (in:) F. Rymarz (ed.), 10 lat demokratycznego pra- wa wyborczego Rzeczypospolitej Polskiej (1990-2000), Warszawa 2000, p. 130.

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2.4. Special Defi nitions of Holders of Constitutional Rights and Freedoms

Holding Polish citizenship is not the only factor narrowing down the scope of rights and freedoms enshrined in the constitutional provisions, because some rights and freedoms may be enjoyed by natural persons – regardless of whether they are Polish citizens – who have a feature that distinguishes them from other persons. Th is feature may be permanent or temporary. In the latter case, this constitutionally specifi ed feature may disappear, with the consequence that the holder of a particular constitutional right or freedom subsequently loses that status. Holders of constitutional rights and freedoms distinguished with respect to a certain special feature might include entities described in the constitutional provisions as women and men (Art. 33), parents (Art. 48 para. 1, Art. 70 para. 3), anyone whose Polish origin was con- fi rmed in accordance with statute (Art. 52 para. 5), or foreigners (Art. 56).

Th e rights referred to in these provisions, by their nature, are not universal and apply specifi cally to persons who belong to clearly defi ned categories distinguished by a certain common feature.

A separate category of constitutional rights covers those enjoyed by persons in specifi c situations. Hypothetically, anyone can fi nd themselves in such a situation, regardless of the citizenship he holds. Such rights are held by e.g. anyone deprived of liberty (Art. 41 paras. 2, 4, 5), every detained person (Art. 41 para. 3), or anyone against whom criminal proceedings have been brought (Art. 42 para. 2). It is obvious that the holder of rights of this kind is specifi ed in the universal way as ‘everyone/anyone,’ and the group constituting the holders of the rights is limited by their special situation.

Yet another way to narrow down a group of holders of constitutional rights and freedoms is to relate them to clearly defi ned entities other than natural persons. Th e fi rst category of such entities includes communities formed by natural persons, and those communities are not legal persons. In this category we should include national and ethnic minorities, which have the right to establish their own educational and cultural institutions or institutions designed to protect their religious identity and to participate in the resolution of matters connected with their cultural identity (Art. 35 para. 2), and families in diffi cult material and social circumstances, particularly those with many children or a single parent, which have the right to special assistance from the public authorities (Art. 71 para. 1). Th e next category of entities that enjoy constitutional rights and freedoms are specifi c categories of legal persons named by the constitutional legislator. Among such entities we should

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mention political parties, which enjoy the freedom to function (Art. 11 para. 1), and trade unions, which have the right to organize workers’ strikes or other forms of protest (Art. 59 para. 3), as well as institutions which have the right to establish schools and educational development institutions (Art. 70 para. 3).

Due to the fact that a legal person is a legal entity that is distinguishable from natural persons, there is no doubt that it is the legal person, not the natural persons who formed it, that benefi ts from those constitutional rights and freedoms.

2.5. Question of the Constitutional Personality of Entities Performing the Functions of Public Authorities

An entity performing the functions of a public authority cannot be a holder of constitutional rights and freedoms.²⁸ As the Constitutional Tribunal stated in its judgment of April 8, 2008, Ref. No. SK 80/06, ‘Th e structure of a constitutional right of which a public authority were to be the benefi ciary would lead to equating entities that interfere with rights and freedoms with their holders.’ A public authority opposing the state would become a party to a competence dispute and not the holder of a given right that is entitled to demand its defense. With respect to state authorities, constitutional provisions determine their powers to act and not their constitutionally safeguard- ed rights and freedoms.

Th us, state authorities at the central and local levels, as well as units of local self-government (e.g. communes, counties) cannot be holders of constitutional rights and freedoms, because, by their nature, they diff er completely from legal persons established by individuals enjoying a constitutionally safe- guarded freedom.²⁹ Local self-government was established in order to discharge public tasks, and to this end was provided with a legal personality and

28 Cf. decisions of the Constitutional Tribunal: of October 26, 2001, Ref. No. Ts 72/01;

of February 6, 2001, Ref. No. Ts 188/00; of February 6, 2001, Ref. No. Ts 148/00; of December 20, 2007, Ref. No. SK 67/05; of April 6, 2011, Ref. No. SK 21/07. Cf. J. Trzciński, “Podmio- towy zakres skargi konstytucyjnej” (in:) L. Garlicki (ed.), Konstytucja. Wybory. Parlament.

Studia ofi arowane Zdzisławowi Jaroszowi, Warszawa 2000, p. 213; J. Trzciński, “Zakres pod- miotowy i podstawa…,” p. 53; B. Banaszak, “Skarga konstytucyjna i jej znaczenie w zakresie ochrony praw podstawowych” (in:) L. Wiśniewski (ed.), Podstawowe prawa jednostki i ich sądowa ochrona, Warszawa 1997, p. 178.

of October 26, 2001, Ref. No. Ts 72/01; of December 11, 2002, Ref. No. Ts 116/02; of Octo-

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independence protected by the courts.³⁰ Th us, while individuals enjoy their rights as they please, within the limits defi ned by the law, and these rights are founded on their dignity and freedom, local self-government units enjoy their rights in order to discharge public tasks.³¹

Th ere are doubts as to whether or not political parties should be treated as entities participating in the administration of public authority, which cannot be the benefi ciaries of constitutional rights and freedoms. In the judgment issued on November 17, 2010, Ref. No. Ts 256/09, the Constitutional Tribunal ruled that ‘Both at the stage of fi ghting for power and – the more so – at the time of exercising it, parties cannot be perceived as ordinary legal persons, being just voluntary associations of citizens. (…) Th e activity of political parties undoubtedly takes place on the public plane and their functions are closely related with problems of the law on the system of government (…).

Th us, constant correlation with the state translates into political parties ob- taining a public-law status.’ Consequently, the Constitutional Tribunal held that a political party was not a holder of constitutional rights and freedoms;

hence it could not make a constitutional complaint, which is a means of pro- tecting such rights and freedoms. Th us, the Constitutional Tribunal treated political parties as an element of the state’s political structure, which it re- iterated in its judgment of September 15, 2011, Ref. No. Ts 256/09, stating:

‘A political party (…) enjoys its rights in order to infl uence the state through the discharge of its Constitution-determined tasks in the public sphere. (…) It follows that a political party (…) functioning in the realm of public law (…), does not enjoy the rights or freedoms specifi ed in Chapter II of the Con- stitution and guaranteed to private entities.’ However two months before the issue of this judgment, in the judgment of July 14, 2011, Ref. No. K 9/11, the Constitutional Tribunal took a diff erent stance and recognized that a political party could hold constitutional rights and freedoms. Without distinguishing between entities of public or private law, it stated that ‘the freedom of speech, expressed in Art. 54 para. 1 of the Constitution, may be enjoyed by both individuals (natural persons) and collective entities, among them political parties and electoral committees, which aft er all are made up of natural persons and speak on their behalf.’ Th e above discrepancy leads to the conclusion that,

ber 12, 2004, Ref. No. Ts 35/04; of October 3, 2005, Ref. No. Ts 148/05; of December 20, 2007, Ref. No. SK 67/05.

of December 11, 2002, Ref. No. Ts 116/02; of October 12, 2004, Ref. No. Ts 35/04; of October 3, 2005, Ref. No. Ts 148/05; of April 6, 2005, Ref. No. Ts 9/05; of December 20, 2007, Ref. No.

SK 67/05.

31 Decision of the Constitutional Tribunal of February 23, 2005, Ref. No. Ts 35/04.

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for the Constitutional Tribunal, whether political parties are entities under constitutional law is a debatable issue.

2.6. Question of Constitutional Personality of Public-Sector Economic Entities

According to the Constitutional Tribunal, public sector economic entities are also among the entities that cannot be benefi ciaries of constitutional rights and freedoms. In the judgment dated May 7, 2001, Ref. No. K 19/00, the Tribunal held: ‘Th e freedom formula cannot be used with respect to the state and other public institutions whose direct involvement in, or indirect infl uence on, the economy cannot be excluded, but whose operations must be governed by a diff erent constitutional regime than the operation of private entities.’ On the other hand, in the judgment of April 6, 2011, Ref. No. SK 21/07, examining the constitutional complaint made by electric energy trans- mission operator Polskie Sieci Elektroenergetyczne SA, the Constitutional Tribunal stated that due to its close link with the state the company could not be regarded as a holder of constitutional rights and freedoms, because ‘Th e operation of public-sector economic entities should serve the state and the discharge of public tasks by it.’ In addition, the Constitutional Tribunal pointed out that private entities were free to decide to commence operation, and to choose a kind of business, their legal and organizational form and the manner and scope of doing business, or fi nally to curtail, suspend or cease their business.

Public-sector economic entities do not have such freedom. For a person, the source of rights and freedoms is his dignity. And as the Tribunal stressed in the judgment of May 7, 2001, Ref. No. K 19/00, ‘One can hardly maintain that powers granted to various kinds of business operators, which operate based on the substantive-law grounds of public-law entity ownership, and which have been established on the basis of decisions by public authorities (even if such decision have actually been made in forms typical of private law), have a direct link with, or stem from, human dignity.’

Th e Constitutional Tribunal assumes that the basic element diff erentiating the position of private entities from that of the state and other public institutions is the substantive-law grounds for their business operations. Th us in its view, an entity pursuing economic activity based entirely on public assets, in particular a sole-shareholder company of the State Treasury, a state-owned enterprise, a unit of local self-government is undoubtedly a public-sector

Applying the constitution of the Republic of Poland in horizontal relations

Monika Florczak-Wątor

APPLYING THE CONSTITUTION

IN HORIZONTAL RELATIONS

OF THE REPUBLIC OF POLAND

APPLYING THE CONSTITUTION

IN HORIZONTAL RELATIONS

OF THE REPUBLIC OF POLAND

0RQLND)ORUF]DN:ĆWRU

APPLYING THE CONSTITUTION

IN HORIZONTAL RELATIONS

OF THE REPUBLIC OF POLAND

CONTENTS

INTRODUCTION

Chapter 1

THE PROBLEM OF THE HORIZONTAL EFFECT OF CONSTITUTIONAL RIGHTS DURING THE DRAFTING

OF THE POLISH CONSTITUTION 1.1. The Period Preceding the Drafting of the Constitution

1.2. Solutions Adopted in Drafts of the Constitution

1.3. Discussion on the Inclusion of the Horizontal Effect Clause

1.4. Conclusions Impacting the Interpretation of Constitutional Provisions

Chapter 2

HOLDERS OF CONSTITUTIONAL RIGHTS AND FREEDOMS

2.1. Regulation of Rights and Freedoms in the Polish Constitution

2.2. The Principle of Universal Enjoyment of Constitutional Rights and Freedoms

2.3. Citizen as a Holder of Constitutional Rights and Freedoms

2.4. Special Defi nitions of Holders of Constitutional Rights and Freedoms

2.5. Question of the Constitutional Personality of Entities Performing the Functions of Public Authorities

2.6. Question of Constitutional Personality of Public-Sector Economic Entities

0RQLND)ORUF]DN:ĆWRU